161.362 Requirements for recommendations, determinations and orders; confidentiality; electronic appearance. (1) A recommendation provided by a certified evaluator, pursuant to ORS 161.355 to 161.371, that a defendant requires a hospital level of care due to the acuity of the defendant’s symptoms must be based upon the defendant’s current diagnosis and symptomatology, the defendant’s current ability to engage in treatment, present safety concerns relating to the defendant and any other pertinent information known to the evaluator. If the defendant is in a placement in a facility, the evaluator may defer to the treatment provider’s recommendation regarding whether a hospital level of care is needed.
(2) A determination by a community mental health program director, or the director’s designee, pursuant to ORS 161.355 to 161.371, that appropriate community restoration services are not present and available in the community must include information concerning the specific services necessary to safely allow the defendant to gain or regain fitness to proceed in the community and must specify the necessary services that are not present and available in the community.
(3)(a) Reports resulting from examinations performed by a certified evaluator, and documents containing the recommendations of or resulting from consultations with a community mental health program director or the director’s designee, prepared under ORS 161.355 to 161.371, and any document submitted to the court by a state mental hospital or other facility to which the defendant is committed or in which the defendant is placed, related to the proceedings under ORS 161.355 to 161.371, are confidential and may be made available only:
(A) To the court, prosecuting attorney, defense attorney, agent of the prosecuti
Stored review status: 2025_edition_later_amendments_unresolved. A text match is a research starting point; applicability is not established.
Official chapter context and edition notices
TITLE 16
CRIMES AND PUNISHMENTS
Chapter 161. General Provisions
162. Offenses Against the State and Public Justice
163. Offenses Against Persons
163A. Sex Offender Reporting and Classification
164. Offenses Against Property
165. Offenses Involving Fraud or Deception
166. Offenses Against Public Order; Firearms and Other Weapons; Racketeering
167. Offenses Against General Welfare and Animals
169. Local and Regional Correctional Facilities; Prisoners; Juvenile Facilities
_______________
Chapter 161 — General Provisions
Uncodified sections printed in this chapter were amended or repealed by the Legislative Assembly during its 2026 regular session. See the table of uncodified sections amended or repealed during the 2026 regular session: 2026 A&R Tables
2025 EDITION
GENERAL PROVISIONS
CRIMES AND PUNISHMENTS
PRINCIPLES
CRIMINAL LIABILITY
PARTIES TO CRIME
JUSTIFICATION
RESPONSIBILITY
(Temporary provisions relating to maximum periods of commitment and community restoration are compiled as notes following ORS 161.371)
INCHOATE CRIMES
CLASSES OF OFFENSES
DISPOSITION OF OFFENDERS
AUTHORITY OF SENTENCING COURT
PRINCIPLES
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Stable record: oregon_criminal_law:legal_authorities:161.362 Source file: ors161.html Pages: Not recorded – Not recorded Passage SHA-256: dc5f745bd917fbee6ca778a5edeab839fb4128104fd51b8b2040e3a29847157e Retained source evidence SHA-256: 8773685681f1bf26a63d62a05c338a6e76c17f6dd1b69da0a77625951fdf2fe5
Source location: ORS 161.362 (all printed versions and notes)
Stored source content
161.362 Requirements for recommendations, determinations and orders; confidentiality; electronic appearance. (1) A recommendation provided by a certified evaluator, pursuant to ORS 161.355 to 161.371, that a defendant requires a hospital level of care due to the acuity of the defendant’s symptoms must be based upon the defendant’s current diagnosis and symptomatology, the defendant’s current ability to engage in treatment, present safety concerns relating to the defendant and any other pertinent information known to the evaluator. If the defendant is in a placement in a facility, the evaluator may defer to the treatment provider’s recommendation regarding whether a hospital level of care is needed.
(2) A determination by a community mental health program director, or the director’s designee, pursuant to ORS 161.355 to 161.371, that appropriate community restoration services are not present and available in the community must include information concerning the specific services necessary to safely allow the defendant to gain or regain fitness to proceed in the community and must specify the necessary services that are not present and available in the community.
(3)(a) Reports resulting from examinations performed by a certified evaluator, and documents containing the recommendations of or resulting from consultations with a community mental health program director or the director’s designee, prepared under ORS 161.355 to 161.371, and any document submitted to the court by a state mental hospital or other facility to which the defendant is committed or in which the defendant is placed, related to the proceedings under ORS 161.355 to 161.371, are confidential and may be made available only:
(A) To the court, prosecuting attorney, defense attorney, agent of the prosecuting or defense attorney, defendant, community mental health program director or designee, state mental hospital and any facility in which the defendant is housed; or
(B) As ordered by a court.
(b) Any facility in which a defendant is housed may not use a report or document described in paragraph (a) of this subsection to support a disciplinary action against the defendant.
(c) Nothing in this subsection prohibits:
(A) The prosecuting attorney, defense attorney or agent of the prosecuting or defense attorney from discussing the contents of a report or document described in paragraph (a) of this subsection with witnesses or victims as otherwise permitted by law.
(B) The disclosure of reports or documents described in paragraph (a) of this subsection, information contained in such reports or documents and any records or information used in the preparation of such reports or documents, as permitted under ORS 192.567 or for the purpose of continuity of care as authorized by law or ordered by the court.
(4) The court shall ensure that an order entered under ORS 161.355 to 161.371 is provided, by the end of the next judicial day, to any entity ordered to provide restoration services.
(5) Unless the court orders otherwise or either party objects, a defendant committed to a state mental hospital or other facility, or a certified evaluator or other expert witness, may attend hearings held under ORS 161.355 to 161.371 via simultaneous electronic transmission. [2021 c.395 §3; 2025 c.175 §7; 2025 c.559 §54]
Cross-references
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Oregon criminal law — ORS Title 16 (2025 snapshot) · legal_authorities
161.355 Definitions. As used in ORS 161.355 to 161.371:
(1) “Certified evaluator” has the meaning given that term in ORS 161.309.
(2) “Community restoration services” means services and treatment necessary to safely allow a defendant to gain or regain fitness to proceed in the community, which may include supervision by pretrial services.
(3) “Hospital level of care” means that a defendant requires the type of care provided by an inpatient hospital in order to gain or regain fitness to proceed.
(4) “Public safety concerns” means that the defendant presents a risk to self or to the public if not hospitalized or in custody. [2021 c.395 §2]
161.363 Procedure for determining fitness to proceed. (1) When the defendant’s fitness to proceed is drawn in question, the issue shall be determined by the court. In making the determination, the court may consider:
(a) An examination ordered under ORS 161.365 (1)(c);
(b) Evidence of a prior diagnosis of the defendant made by a certified evaluator or a qualified mental health practitioner;
(c) A prior examination or evaluation of the defendant conducted under ORS 161.309, 161.315, 161.365, 161.370 or 161.371;
(d) Prior judicial determinations that the defendant lacked fitness to proceed;
(e) Prior commitments of the defendant under ORS 427.235 to 427.292 or ORS chapter 426;
(f) The defendant’s conduct as observed by the court;
(g) Prior court records or assessments relating to actions involving the defendant that contain a mental health diagnosis of the defendant;
(h) Relevant information on the defendant’s mental health diagnosis in the possession of the local supervisory authority, if the defendant is under active supervision; and
(i) Any other information the court deems relevant.
(2)(a) The court may hear a motion to find that the defendant is fit to proceed or lacks fitness to proceed from either party. The motion may be made orally or in writing.
(b) If a motion under this subsection is uncontested, the court may make the determination of fitness based on the motion and any supporting evidence. If the motion is contested, the moving party shall file a written motion and supporting evidence with the court, if a written motion has not already been filed.
(3)(a) The court shall hold a hearing on a contested motion as soon as practicable and in accordance with this subsection. If either party requests, or upon the court’s own motion, the court shall hold